In this issue we will be covering:
- French-Language RT Forklift material revised.
- Can OSHA-related terminations be justified?
- Family of driver killed by forklift sues contractors and unlicensed driver for $25 million.
- Two construction workers cling on for dear life to their boom lift.
- Ask Bob: Our tech guru answers a question on how much free lift a forklift has?
- Fines of nearly half a million dollars over Canterbury poultry farm death.
- Last chance to register!
- What's Wrong With This? Photo and answer.
- A selection of interesting articles.
- New Product Highlights: Electric Wheeled Excavator.
- New testimonials from our wonderful clients.
French Language RT Forklift material revised
We have made some revisions to the content of our French language rough terrain forklift operator training materials. The Operator Reference Manual and Final Written Theory Test have been upgraded and harmonized with the English and Spanish Language versions. In particular, the information, graphics and exercises related to the boom extension indicator and the use of load capacity charts has been added and/or upgraded. Changes were also made to the overhead guard maximum allowable damage spec as per current ANSI standards, and a number of less significant, editorial changes were also made. These revised French language materials are in stock now, enjoy!
Can OSHA-related terminations be justified?
By Cathy Chandler
When it comes to employee performance management, can health and safety violations justify the “for cause” termination of an employee? Unfortunately, the short answer is “it depends.” There is no fixed rule as to the degree of misconduct required to justify a dismissal for just cause. So, where does that leave employers when it comes to understanding whether a just cause termination is appropriate for a health and safety violation?
Let’s start with the fact that just cause for employee misconduct is very difficult to establish. Essentially, the misconduct must be so grievous as to breach the fundamental terms and conditions of the employment relationship. The employee’s employment history, remorse and planned course of action in response to the misconduct are relevant to the determination of discipline. In other words, not every instance of employee misconduct will amount to just cause.
In Plester v. PolyOne Canada Inc., the Court of Appeal for Ontario found that one violation of a health and safety rule did not constitute just cause for the dismissal of a long-term supervisory employee. Additionally, his conduct did not place other employees at risk, and he was planning to report the violation. The court did not accept the employer’s argument that the employee’s conduct breached the fundamental terms and conditions of the employment relationship.
However, when it comes to health and safety violations, a single incident may be sufficient to constitute just cause if it breaches the trust or faith that is inherent in the employment relationship or is fundamentally inconsistent with the employee’s employment obligations. In Birchall v. Canadian Helicopter Ltd., an airline pilot consumed large amounts of alcohol prior to his scheduled shift. In Balzer v. Federated Co-operatives Limited, a propane coordinator responsible for OHS enforcement violated emergency evacuation and reporting safety rules after causing a propane spill. Termination for cause was upheld for these incidents.
Typically, a pattern of misconduct is required to justify a summary dismissal (immediate termination of employment). Therefore, many employers rely on a system of progressive discipline when it comes to dealing with employee misconduct. Progressive discipline is a process by which an employer imposes disciplinary measures of increasing severity to correct employee misconduct, such as providing the employee with warnings as well as assistance in meeting expectations. Where the employer has established objective standards of performance, communicated the standards to the employee and then the employee has failed to meet those standards, progressive discipline may be appropriate.
Properly implemented progressive discipline for health and safety violations can support a case for just cause dismissal. In Hudson Bay Mining and Smelting Company, the griever was a 15-year employee who worked in a copper smelter and was responsible for moving extremely hot powder material in rail cars. He was terminated for the improper work practice of bumping calcine cars. The employee had been disciplined previously for this practice and was on step four of the company’s five-step disciplinary program. The arbitrator held that the employee created a safety risk by his actions. His record was identified as poor, with prior, recent discipline for the same practice. The termination was upheld.
It is important that any progressive discipline be properly implemented. Failure to do so may jeopardize an employer's just cause defense and lead to the conclusion that each incident of misconduct should be viewed in isolation, rather than a cumulative pattern of misconduct. It’s important to ensure you investigate the misconduct or provide the employee an opportunity to provide their version of events; warn the employee that engaging in further misconduct could amount to just cause; and do not condone the misconduct.
Where an employee is summarily dismissed on disciplinary grounds, adjudicators will typically consider the following: Was there just and reasonable cause for some form of discipline? Was summary dismissal an excessive disciplinary response to the circumstances? Should another measure have been substituted if summary dismissal was an excessive response?
If the dismissal was unjust, adjudicators have the power to substitute another form of discipline and reinstate the employee with back pay. In United Steelworkers, Local 9316 v. Narl Refining LP, an oil refinery worker was promptly terminated when he issued a safety permit that improperly indicated a confined space was safe for entry. The union grieved the decision and argued that two other employees were disciplined but not dismissed for the same incident. The arbitrator agreed and ordered the employer to reinstate the terminated employee, but with a 12-month unpaid suspension.
In summary, when it comes to enacting discipline for health and safety violations, the appropriate penalty in any given case should always be reviewed from the perspective of progressive discipline. Where an employee’s misconduct is not reconcilable with maintaining an employment relationship, a decision to terminate for just cause may be appropriate. In general, termination is upheld where the employee had a long history of past discipline and the incident was treated as a culminating event. Where there was a lack of prior discipline in combination with long service, an employee may be reinstated to employment, with a suspension substituted for the termination. Single-incident just cause may be found when an employee’s conduct jeopardizes the safety of others.
© Copyright Canadian Occupational Safety, a Key Media company
Editorial Note: Although the information in the preceding article may be applicable in both the US and Canada, please be advised that it is based on Canadian law.
Family of driver killed by forklift sues contractors and unlicensed driver for $25 Million
A negligence lawsuit claims that the most basic of background checks could have saved the life of a Canadian retiree who died a grisly death when a forklift driven by an undocumented and unlicensed construction worker tore into his convertible and killed him.
James Zakos’ head injuries likely were not survivable, family lawyers said, but the crash definitely was preventable.
On the hook in the lawsuit are the contractor and three subcontractors involved in Fort Lauderdale’s multimillion-dollar Las Olas Beach improvement project, as well as Ulises Mondragon, 30, who drove the forklift.
“There’s going to be a lot of finger-pointing among all of the defendants,” said Blake Dolman, a Fort Lauderdale lawyer representing Zakos’ sister, Margaret, and adult children, Alexandra, 30, and Thomas, 28.
The Zakos family is seeking $25 million in damages in the civil lawsuit filed this week in Broward Circuit Court. The suit demands a jury trial.
“This was not just an accident, this was grossly and egregiously negligent," Dolman said. “This was so preventable.”
The 70-year-old snowbird was driving his Mercedes-Benz with the top down along Fort Lauderdale beach on Nov. 17 when the forklift pulled out too far into an intersection, police said.
The lift’s elevated forks jutted into traffic, ripped into Zakos’ car and pierced a portion of his brain. He was taken to a hospital and put on life support but was later pronounced dead, Dolman said.
At the scene, Mondragon, of West Palm Beach, told police he did not have a driver license, nor a permit to operate heavy machinery like the forklift.
“It is deeply disturbing that the multibillion-dollar companies involved in this tragedy did not make any effort to look out for the safety of the drivers sharing the road with that forklift,” said Dolman. “He did not have a driver license and it is our understanding that he had no formal forklift training.”
“A simple pre-employment background check," Dolman said, would have shown that Mondragon had been fined three times since 2011 for driving without a license in Palm Beach County.
“We don’t know if he’s ever had a driver license,” Dolman said. “That’s the most egregious thing.”
Mondragon, originally from El Salvador, does not speak English nor does he have documentation to be in the United States.
Police charged Ulises Mondragon Umanzor with leaving the scene of a fatality accident, failure to stop at a stop sign and driving without a license after a collision between a forklift and a convertible on Fort Lauderdale Beach Sunday, Nov. 17, 2019.
Authorities have placed an immigration hold on him while he is jailed for failing to get a driver license, along with a felony count of leaving the scene of a fatal accident.
Mondragon’s status as an undocumented immigrant is not the most concerning issue, Dolman said, it’s that subcontractors hired someone with such “a horrific driving record.”
“Just being an illegal worker doesn’t mean you’re a danger to society,” he said. "We’re equally, if not more disturbed, that they hired someone with no driver license and no experience driving a forklift.”
Skanska USA Building, Inc., a large Swedish construction firm, signed a $49 million contract with the city of Fort Lauderdale in 2017, making it construction manager for the beach project.
Skanska hired Brightview Landscape Development, Inc. as a subcontractor to handle building and landscaping a beachfront park.
Brightview, a California company, in turn, subcontracted with Cast-One Creations, Inc. for stone and concrete benches and fountains.
Cast-One in Doral hired Mondragon. His arrest report said he had worked for the company for two days.
“On behalf of my client, we are not commenting on any pending litigation at this time,” Cast-One’s lawyer, Teri Guttman Valdes, said via email Thursday.
A Skanska spokeswoman previously told the South Florida Sun Sentinel that the company was “deeply saddened by this tragic incident” and that it would conduct an internal investigation to ensure safety.
On Friday, the company issued a statement saying, “It is Skanska’s policy to not comment on matters of litigation.”
Brightview or HERC Rentals, Inc., the company that leased out the forklift, did not return requests for comment on the lawsuit.
The city of Fort Lauderdale, Dolman said, appears to bear no blame.
It signed a contract with Skanska that required the company to take responsibility for the safety and supervision, not only of their own workers, but also of any subcontractors, Dolman said.
“Our thought right now is that the city of Fort Lauderdale did everything right,” Dolman said. "They had a great contract with Skanska that really put safety first and foremost. Unfortunately, Skanska and the various subcontractors chose to disregard it.
“A lot of different entities dropped the ball here."
Two construction workers cling on for dear life to their boom lift after it tipped and left them wedged up against side of building
Two construction workers were injured Friday when a hydraulic lift they were operating tipped over and left them wedged up against a building, helplessly suspending them dozens of feet in the air.
Officials from the FDNY responded to the incident in Harlem at around 9:30 am this morning, on West 118th Street near Fifth Avenue.
The workers had been operating a boom lift 50 feet in the air in a vacant lot between two buildings, apparently installing sliding materials to the exterior of one of them.
However, the boom lift became unstable and tipped over, crashing into the building next door and leaving the men stranded in the air.
Several fire trucks and ambulances raced to the scene. After just a few minutes the men were rescued by firefighters using an extended ladder.
Both of the workers were taken to Harlem Hospital and were said to have suffered non-life threatening injuries.
Meanwhile, the worksite has been shut down while an investigation into the incident is carried out.
Q. How do I determine how much free lift my forklift has? Is it on the data plate or mast?
A. Free lift is rarely listed on the capacity plate and is not listed in the Operators Manual either. You have to figure it out the old fashioned way; tape measure, raise the forks / carriage until the second stage of the mast starts to rise and measure the free lift distance from the top of the fork blades to the ground.
I hope this helps,
Why is planned maintenance necessary?
Your forklift works hard, and you should want to keep it working hard for as long as it can. This is why planned maintenance can be so important. Planned maintenance (PM) isn’t just for the forklift, it’s for you! When you use PM for your forklift , there are many benefits. Here are the top 3 reasons you should consider PM.
It Relieves the Stress of Surprise Breakdowns
When you are regularly scheduling maintenance for your forklift, it may lead to early detection of a potential maintenance need, offering peace of mind. You’ll also see benefits when you use a certified Toyota technician who utilizes Toyota Genuine Parts. When your forklift is secure and fully inspected, there is going to be a less potential mechanical failure. PM makes sure that you are getting that inspection and catching potential problems. It is better to catch these small issues with a PM program than it is to catch them after they have already become a larger issue.
It Helps Reduce Operating Costs
One of the most expensive costs associated with owning a forklift is downtime. If you have a maintenance plan that makes sure your forklift is in top shape, you will benefit from more uptime. This can also increase the lifespan of your forklift! The other way it helps save money is by not having to employ an onsite forklift mechanic. You will also have the option to pay by the month, which can make budgeting for your maintenance more predictable.
Better Trade Value
Another benefit of using a PM program is that it will help when it comes time to sell the forklift. If the buyer knows you have had the forklift inspected with a PM program, it shows that you have taken care of the machine. And like we mentioned earlier, replacing Toyota Forklifts with Toyota Genuine Parts helps increase the lifespan, and makes sure the forklift is running for as long as it can.
If you really want a deeper look into PM, ask your Toyota Certified Dealer to see the inspection forms they use so you will have a better understanding of what PM inspection entails. And remember, signing up for Toyota 360 will get you a year of Planned Maintenance to make sure your forklift is running like a Toyota.
Fines of nearly half a million dollars over Canterbury poultry farm death
Penalties totaling nearly half a million dollars have been imposed on two companies involved in the death of a worker struck by a forklift at a poultry farm near Christchurch.
Tegel Foods Ltd faces penalties of about $200,000 plus costs of $12,000, and Alderson Poultry Transport Ltd has been ordered to pay $240,000 plus costs of $7000.
Kamila Mun, 51, a mother of seven, was struck and killed by a forklift in June 2017, on her first day of work at a poultry farm at Broadfields. She had taken a second job with a poultry transport company to help pay for her children's education.
Submissions on the penalties were heard before Judge Paul Kellar in the Christchurch District Court last week and he reserved his judgment for release on Monday.
Alderson's admitted failing to ensure the safety of an employee at work, and Tegel admitted a workplace safety charge of failing to comply with a relevant duty and exposing a person to a risk of death or serious injury.
Mun was employed on chicken catching operations. As she was leaving the shed to get a drink, she was struck and run over by a forklift carrying a full module of chickens. She died of crush injuries at the scene.
Police were called, followed by WorkSafe New Zealand.
Judge Kellar said WorkSafe's investigation revealed Alderson's chicken catching procedures did not involve physical separation between catchers and the forklift. That practice was consistent with industry-wide practice.
WorkSafe then issued a prohibition notice stopping forklifts operating in the sheds at the same time as chicken catchers.
Tegel and Alderson's have paid emotional harm reparations for Mun's death, as well as payments for "consequential loss". Judge Kellar assessed the total amounts and ordered further payments in each case.
Alderson's continues to employ her husband and support the family.
What's Wrong With This? Photo
Can you tell what's going wrong?
Have a photo you'd like to share? Send it to us!
Answer to Last Month's WWWT? Photo
Here's what our Director of Training, Rob Vetter had to say about it:
Looking at this photo from last month's IVES Update, it occured to me we should consider renaming the piece, "What's Not Wrong With This?" In any case, here's the laundry list:
- First and most obvious, using any means at all to increase the height or reach of a MEWP is strictly prohibited by all manufacturers, ANSI standards, CSA standards and the good judgement of anyone with an IQ north of 20. Of course this includes lifting a scissor lift with a forklift.
- Speaking of raising a scissor lift with a forklift, scissor lifts have fork pockets at each end of the unit specifically designed for this purpose. Apparently the forklift operator did not read the manual as the unit is engaged from the side.
- The operator of the forklift is nowhere to be seen which is another no-no when a) there is an elevated load and, b) the forklift is used to elevate personnel. Maybe he/she went to find the aforementioned manual.
- One can only assume the reason the deck of the scissor lift’s work platform is extended is because the person on the work platform intends to go on the extended portion. I shudder to think of what might happen if he/she does as logic would dictate that all of the scissor lift’s capacity and stability calculations are made with the unit positioned with all four wheels firmly in contact with the ground, not poorly balanced on the tines of a forklift.
- The scissor lift off in the distance appears to have been parked with its work platform extension out. It should have been pulled back in before the last operator even lowered it.
I could go on, but enough said.
Have a photo you'd like to share? Send it to us!
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New Product Highlights
Hidromek wins German Design Award for electric wheeled excavator. New zero-emission, 100% electric HICON 7W part of company’s long-term plan for equipment of the future.
Turkish construction equipment manufacturer Hidromek has won the German Design Award 2020 for its HICON 7W fully-electric wheeled excavator.
The 100% electric HICON 7W was developed by Hidromek with the goal of specialization in the electric construction equipment category of the future, said a statement from the Turkish company. The machine stands out with its smart, economic and eco-friendly features and, with its zero emissions and compact dimensions, is especially useful on job-sites located in urban centres.
Among the innovative features of the HICON 7W is its ‘Environmental Safety System’, which promotes safe driving and working in congested city job sites by relaying information about the surroundings to the operator with a rear screen.
Hidromek first exhibited the prototype of the HIOCN 7W at Bauma 2019 earlier this year, where the new machine attracted great attention with its innovative features. The company said the new machine has been declared a winner at one of the most distinguished design competitions in the world – the German Design Award. The competition is organized every year by the German Design Council, one of the world’s leading competence centres for industrial design, and grants prizes to projects that make pioneering contributions to the area of international design.
Hidromek said it kept up its winning streak at the competition for the second year running after its HMK 640 WL wheeled loader had bagged the win in its category at the German Design Award 2018. The Turkish manufacturer had also received a ‘Special Mention’ in 2017 for its HMK 600 MG motor grader. With this latest win, the company has increased the number of its design awards to 18 in the 41 years that it has been in business.
"The materials were exceptional. I thought I knew much more than I actually did. This course opened my eyes to an entirely new perspective of fork truck operations." Dave, Knolls Atomic Power Lab
"I think this program was great! Even after operating a lift for years there was so much I learned. Awesome program, keep it up IVES!" Alan, Pepsico
"After taking 2 other forklift certification classes, this program will be a far superior product to provide to operators. Great instructor and great class." Andrew, City of Bakersfield
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